Dunton v Dunton

(1892) 18 VLR 114

Overview

The parties entered into an agreement pursuant to which Mr Dunton agreed to pay his former wife an allowance if she behaved ‘with sobriety, and in a respectable, orderly, and virtuous manner’ and did not commit an act whereby she or Mr Dunton could be subjected to ‘hate, contempt, or ridicule’.

On the issue of whether the promise to behave in this way constituted valid consideration, the majority held that it did - Mrs Dunton promised not to do something which she was lawfully entitled to do.

Facts

The parties entered into a written agreement whereby Mr Dunton agreed to pay his former wife an allowance so long as she behaved ‘with sobriety, and in a respectable, orderly, and virtuous manner’ and did not commit an act whereby she or Mr Dunton could be subjected to ‘hate, contempt, or ridicule’.

A question arose as to whether this agreement was legally binding.

Was there consideration for Mr Dunton’s promise to pay the allowance?

Arguments

Plaintiff

A promise to behave respectably constitutes good consideration.

Defendant

The promise to behave respectably was merely a promise to do that which Mrs Dunton was already bound to do (ie, she was already required to behave respectably!) and was, therefore, not good consideration.

Appeal

Chief Justice Higinbotham

The terms of the agreement did imply a promise by Mrs Dunton and this was good consideration. Though promising not to do something which cannot lawfully be done is not good consideration, a promise not to do something which can be lawfully done is good consideration.

Here Mrs Dunton promised to give up a liberty she had to behave badly.

[Mrs Dunton] was released by the decree for the dissolution of marriage from her conjugal obligation to the defendant to conduct herself with sobriety, and in a respectable, orderly, and virtuous manner …

As a result

... her promise to surrender her liberty and to conduct herself in the manner desired by the defendant constituted … a good consideration.

Justice Williams

Agreed with Lord Higinbotham.

Justice Hood

The promise (if there was one) was too vague and uncertain to be enforced.